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Court of Criminal Appeal 5 April 2024

Riddell v R

[2024] NSWCCA 46

Drugs
CRIME APPEALS NO REASON SHOWN TO VARY ORDERS

Citation: Riddell v R [2024] NSWCCA 46
Court: NSW Court of Criminal Appeal
Date: 5 April 2024
Judges: Stern JA, Davies J, Campbell J

Background

The applicant was convicted in 2007 of conspiring to import a commercial quantity of MDMA into Australia and was sentenced to life imprisonment with a 19-year non-parole period. He has made multiple attempts over the years to challenge his conviction and sentence, including a notice of appeal filed in 2012 that he ultimately abandoned in 2016, and a further application for leave to appeal refused in 2017.

In April 2022, the applicant again sought leave to appeal, filing over 4,200 pages of material in support. The Court ordered that material be returned and directed him to file submissions not exceeding 200 pages. That order was repeated on three separate occasions. He did not comply.

In June 2023, Wright J ordered that the application for leave to appeal would be dismissed unless the applicant filed compliant 200-page submissions by February 2024. The applicant instead filed a purported notice of appeal against Wright J's orders, which the full Court treated as an application to reconsider, vacate, or amend those interlocutory orders.

  • Whether the Court had jurisdiction to entertain the applicant's challenge to Wright J's orders, given that no appeal lies from a single judge exercising jurisdiction under s 22 of the Criminal Appeal Act 1912 (NSW)
  • Whether it was in the interests of justice to reconsider, vacate, or amend the orders imposing the 200-page limit and the conditional dismissal
  • Whether Wright J had power to make the orders, including whether those orders were inconsistent with the Commonwealth Constitution or the requirements of federal judicial power
  • Whether Davies J should recuse himself on the basis of apprehended bias arising from his participation in earlier proceedings involving the applicant

Decision

The Court held that no appeal lies from a decision of a single judge exercising the Court's jurisdiction under s 22 of the Criminal Appeal Act. The applicant's challenge was therefore treated as an application to reconsider, vacate, or amend the interlocutory orders, and no extension of time was required for that purpose. The guiding principle on such an application is whether it is in the interests of justice to disturb the orders, with a material change in circumstances being a powerful, though not exhaustive, consideration.

The Court rejected the applicant's constitutional arguments, finding nothing contrary to the Commonwealth Constitution or federal judicial power in courts imposing page and time limits on submissions, or dismissing applications for want of prosecution where a party persistently refuses to comply with directions. Wright J had acted within power on each occasion.

Turning to the merits of the interests-of-justice question, the Court assumed without deciding that two of the proposed grounds of appeal were at least fairly arguable. That assumption was not, however, sufficient to overcome the powerful factors operating against the applicant. He had failed for nearly 18 months to comply with orders made on three separate occasions. Meanwhile, he had produced approximately 172 pages of detailed submissions in support of the current application itself, which the Court found to be a clear demonstration of his capacity to produce compliant material. No material change of circumstances since Wright J's orders was established.

The Court also dismissed the recusal application regarding Davies J. The earlier proceedings in which Davies J had participated did not involve any determination of the merits of the applicant's appeal, and the Court found no basis upon which a fair-minded lay observer might reasonably apprehend that Davies J might not bring an impartial mind to the resolution of the current application.

Orders Made

  • The application for Davies J to recuse himself was dismissed.
  • The applicant's application (the purported appeal against Wright J's orders) was dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that no appeal lies against a decision of a single judge exercising the Court's jurisdiction under s 22 of the Criminal Appeal Act 1912 (NSW); a purported appeal against such orders is properly characterised as an application to reconsider, vacate, or amend interlocutory orders.
  • The interests-of-justice test governs applications to reconsider interlocutory orders, with a material change in circumstances being a powerful (but not exhaustive) consideration; disagreement with a court's rationale for its orders does not excuse non-compliance.
  • Imposing page and time limits on submissions, and dismissing applications for persistent non-compliance with such limits, is consistent with the Commonwealth Constitution and the requirements of federal judicial power.
  • Where a litigant produces substantial, detailed written material in support of a collateral application, that conduct may itself undermine any claim of incapacity to comply with earlier directions.
  • Apprehended bias does not arise merely because a judge previously sat on proceedings involving the same party, where those earlier proceedings did not determine the merits of the matter now before the court.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 12(1)(d), 22
- Supreme Court Act 1970 (NSW), s 69
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 4.1, 5.4

Cases:
- Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Gould v R [2023] NSWCCA 103
- Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
- Nicholas v R (1998) 193 CLR 173; [1998] HCA 9
- QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
- R v Jones (No 2) (2010) 79 NSWLR 143; [2010] NSWCCA 195
- Re JRL; Exp CJL (1986) 161 CLR 342; [1986] HCA 39
- Riddell v R (No 2) [2016] NSWCCA 74